State v. Hudson

• Decision Date: 27 February 1893
• Citation: 13 Mont. 112
• Parties: STATE v. HUDSON.
• Court: Montana Supreme Court

13 Mont. 112

STATE

v.HUDSON.

Supreme Court of Montana.

Feb. 27, 1893.

Appeal from district court, Gallatin county; F. H. Armstrong, Judge.

James M. Hudson was convicted of uttering forged paper, and appeals. Reversed.

The other facts fully appear in the following statement by DE WITT, J.:

This is an appeal by the defendant from a judgment upon a conviction for uttering, publishing, and passing an alleged forged instrument. The opinion below treats but one of the several points made by appellant, which may be stated as follows: Information was filed in Gallatin county, charging the offense of uttering, publishing, and passing the forged instrument in Gallatin county. The proof was that the defendant deposited the alleged forged instrument in the United States mail at Three Forks, a post office in Gallatin county, directed to the city of Butte, a post office in Silver Bow county, to the Singer Manufacturing Company, the party alleged to be intended to be defrauded by the defendant. The Singer Manufacturing Company, to whom the forged instrument was so sent, received the same at Butte, in Silver Bow county. This was the only testimony as to venue,-as to the place where the defendant uttered, published, and passed the instrument. The court instructed the jury, on the matter of venue, that if the state has shown that the defendant mailed the instrument in Gallatin county, state of Montana, addressed to the Singer Manufacturing Company, at the city of Butte, Mont., with the intent, etc., and that the defendant knew the instrument to be false and fictitious, and that the Singer Manufacturing Company received the instrument in the course of mail, that was sufficient. The question now upon the appeal is whether the facts of a mailing of the forged instrument by defendant in Gallatin county, and the due receipt of the same by the Singer Manufacturing Company in Silver Bow county, constituted an uttering, publishing, and passing in Gallatin county. If yes, the venue was proved; if no, the venue was not proved, and the judgment must be reversed.

E. P. Cadwell, for appellant.

Henri J. Haskell, Atty. Gen., for the State.

DE WITT, J., (after stating the facts.)

The precise question presented here was thoroughly considered in New York in the case of People v. Rathbun, 21 Wend. 508. Mr. Justice Cowen wrote an exhaustive opinion, both upon the reason of the proposition, and upon the authority of the decided cases. The case is a standard citation in the text-books. 3 Greenl. Ev. § 112; Whart, Crim. Law, § 1451; 2 Bish. Crim. Proc. § 428. In a later case in New York (People v. Adams, 3 Denio, 209) the opinion of the court, after speaking of the principle decided in 21 Wend., and after citing other cases, went on to remark: “And to the same effect are the views of the late Mr. Justice Cowen, as expressed in Rathbun's Case. And the principle is too reasonable and just of itself, and too well sustained by adjudged cases, to admit, in my judgment, of any serious doubt.” It was held in the Rathbun Case that the venue was in the county where the letter containing the forged instrument was received, and not in the county where it was mailed. Upon that theory the venue in the case at bar should be in Silver Bow county, and not in Gallatin county. We are wholly satisfied with Justice Cowen's views, and nothing new occurs to us which would add to the weight of his reasoning or conclusion. The venue was not, therefore, proved in Gallatin county; and the judgment must be reversed, unless our statute has worked a change in the principle announced in the Rathbun Case. The Rathbun Case discussed the doctrine of an offense being committed partly in one county and partly in another, and concluded that the offense was committed wholly in the county where the letter was...